Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703
See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt
Fact Check: Judge Alito and the "Little Guy"
The new strategy for explaining away Judge Alito's long record of deference to executive power and hostility to individual rights is to highlight a small handful of opinions in which he sided with "the little guy" while ignoring a mountain of contrary evidence.
This distortion of Judge Alito's record is misleading and cynical.
Needles in a Haystack
Today, Senator Coburn said: "I'd like to put a few things into the record, if I may. One is just a list of cases where Judge Alito ruled for the little guy. There's been a lot made, and here's a list of [13] cases with specifics where he, in fact [ruled for the little guy.]" [1/11/06]
By citing a small handful of cases out of almost 500 published and unpublished opinions that Judge Alito wrote, Republicans attempt to gloss over Judge Alito's very real record of hostility to individual rights.
- A Knight Ridder analysis of Judge Alito's 311 published opinions found "a clear pattern": Judge Alito "seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big businesses." (Knight Ridder, 12/2/05)
- Professor Cass Sunstein's found that "when there is a conflict between institutions and individual rights, Judge Alito' s dissenting opinions argue against individual rights 84% of the time." (Letter from Cass Sunstein to Senator Kennedy, 12/29/05)
Distorting Particular Cases
In addition to using fuzzy math, Republicans are praising Judge Alito's support for "the little guy" by citing uncontroversial cases with obvious outcomes or by distorting the facts or outcome of the cases they cite.
For example, the document that was inserted in the record cites Fatin v. INS for the proposition that "if a woman had a credible fear that she would be persecuted in her home country because of her gender, feminist beliefs, or membership in a feminist group, she was eligible for asylum." In fact, Judge Alito agreed with the Board of Immigration Appeals and ordered the deportation of Fatin. Alito adopted the Board's findings "that there was no evidence that she would be 'singled out' for persecution. Instead, the Board observed that she would be 'subject to the same restrictions and requirements' as the rest of the population."
Another case that was cited was Brinson v. Vaughn, where Judge Altio held that a prosecutor violated the Constitution by improperly striking potential African American jurors. What was glossed over today was that the decision was uncontroversial and obvious: 13 of the 14 potential jurors the prosecutor struck were African American, and the state trial judge admitted that he had not read the controlling Supreme Court decision.